News

The short answer is yes! Research has found that when a person is prepared to advocate for the target of the bullying and take a stand on their behalf, the bullying behaviour decreases or in fact ends. Witnesses or bystanders are the group with the most power to stop bullying, yet they are notorious for not intervening when they see it happening.

Why are bystanders reluctant to get involved?

A study conducted by the Australian Rights Commission (2012) titled Cyberbullying and the Bystander highlighted some concerning statistics relating to bystanders in schools:

• 20-30% of students actively assist or reinforce bullying;
• another 26-30% of students try to stay outside the bullying situation; and
• less than 20% of students act to stop the bullying and defend the student being bullied.

The study highlighted the power of bystander intervention noting that when students did decide to intervene observational research found that bullying stopped within ten seconds of peer intervention in many cases.

The study noted possible reasons why students were reluctant to intervene including:

• their desire for peer acceptance;
• uncertainty about what action to take;
• fear of becoming the next target of the bullying;
• lack of knowledge about appropriate strategies to use to intervene;
• and/or assuming that another observer will take action to stop the situation.

Although the study was confined to school aged individuals some of the reasons bystanders remain passive are also germane to adults, particularly the last point.

A ground-breaking experiment that looked into the role of bystander’s reluctance to intervene was the Bystander Apathy Experiment conducted by Social psychologists, Darley and Latané (1964) in response to the brutal rape and murder of Kitty Genovese in New York. The murder was committed outside Kitty Genovese’s apartment building. It was reported up to 38 witnesses saw or heard the attack and did not call the police, prompting the now famous experiment by Darley and Latané. As a result of the experiment the term(s) bystander effect and bystander apathy were coined, being a social psychological phenomenon in which individuals are less likely to offer help to a victim when other people are present. They noted several factors contribute to the bystander effect, including ambiguity, cohesiveness and diffusion of responsibility. The last term diffusion of responsibility is phenomenon whereby a person is less likely to take responsibility for action or inaction when others are present. Considered a form of attribution, the individual assumes that others either are responsible for taking action or have already done so.

The Australian Human Rights Commission noted a more recent study conducted in 2005 proposing a model relevant to bystander issues in the workplace. The model contains 4 propositions by which a workplace observer will respond to a perceived injustice or violation of a co-worker. Ultimately the study: highlighted bystanders are less likely to be passive when they identify with the bullying target and they are influenced by the organisational environment such as the organisational culture and repercussions for becoming involved.

We thought we would share with you two clips that are great for emphasising the importance of bystander action. You might like to consider these in your internal communications.

This is a 2009 video showing an experiment conducted in London whereby actors pretended to be ill and collapsed in a busy public place while many bystanders walked past without intervening. You will see, the impact of diffusion of responsibility is very strong as people are struggling with two social rules, the first being that they ought to help and the second being they ought to do what everyone else is doing, in this case not helping. In one of the experiments within 4 minutes, 34 people passed without helping, with the first attempt to help taking 20 minutes. Interestingly when the actor was dressed in a business suit and as such appeared to be “part of the group”, it took only 6 seconds for a bystander to intervene, highlighting the likeliness of individuals to react when they identify with the victim. The experiment also clearly highlighted that when one person stopped to help the willingness of others to also stop and help was increased, thus creating a new group norm.

https://www.youtube.com/watch?v=OSsPfbup0ac

The below link also details an experiment conducted in the US, showing the reluctance of bystanders to intervene.

https://youtu.be/EisZTB4ZQxY

Who should have access to an Investigation Report and can ‘Legal Privilege’ protect the confidentiality of an investigation report?

It is important to be mindful during a workplace investigation of who has access to the investigation report. We have been asked by many clients over the years for advice in relation to the extent to which a report should be shared within the business.

Should the Complainant and Respondent be provided with a copy of the report?

We strongly advocate that a report is shared only with those who have a responsibility to make decisions arising from the report. Why?

Firstly, to maintain confidentiality as far as possible for all parties to the investigation. Secondly, to protect the integrity of your organisations complaint/grievance process.

If reports are more broadly shared, it could have negative consequences for future investigations. Perception that confidentiality is not maintained could see complainants being reluctant to raise a complaint via your internal complaint/grievance process. Witnesses may refuse to participate or severely limit their evidence, having an adverse impact on the investigation process and outcome.

It is essential that complainants and respondents are provided with feedback regarding the findings of an investigation and it is confirmed to them in writing, however they are not required to be provided with a copy of the report unless your organisations policy or procedure specify this requirement.

A recent case heard in the Fair Work Commission highlights an example of where an employee terminated for bullying requested access to an investigation report as part of an unfair dismissal claim. The employer refused on the grounds of Legal Professional Privilege.

What is Legal Privilege?

Legal professional privilege is a rule protecting the disclosure of communications between a lawyer and their client when in the process of providing legal advice.

The case of Kirkman v DP World Melbourne Limited [2016] FWC 605 highlights that when legal privilege is effectively established and maintained the confidentiality of internal documents and advice can be protected from disclosure.

The employer received a complaint of bullying and instructed their lawyers to engage an independent investigator who investigated the complaint and prepared a report on the findings. The claim of bullying was substantiated.

Six months later the employee was dismissed. He filed an unfair dismissal claim requesting a copy of the investigation report and several associated documents to assist his claim. The employer refused, stating the report was legally privileged and the employee disputed the decision.

In this case legal privilege was upheld and the employer was entitled to refuse to provide access to the investigation report on the basis that;

• the investigator was engaged by the employer’s lawyers to assist in preparing advice for the employer;
• the investigators communications were only directed to the lawyers, not the business;
• document control was strictly established and maintained;
• the report was marked private and confidential; and
• the employer had not expressly or impliedly waived privilege over the document, partial disclosure for use in disciplinary discussions in relation to the allegations was permitted.

Interestingly, it was also noted that this was not a case in which the documents were required to be disclosed so that the employee could understand the nature of the allegations of misconduct put against him.The allegations were clearly put to the respondent in writing in the course of the investigation.

Organisations are increasingly utilising their social media platforms to encourage customer feedback.

So what happens when the feedback provided is abusive, defamatory, demeaning or belittling?

Can the employer be liable for bullying or harassment from customers?

Under the Fair Work Act repeated unreasonable behaviour by an individual or group of individuals towards a worker, where the behaviour creates a risk to health and safety whilst at work, could amount to bullying. The Act however, is silent in relation to who the perpetrator of the unreasonable behaviour may be.

There are also obligations on employers under Work Health and Safety legislation to monitor and address workplace risks, including risks to an employee’s psychological wellbeing.

It would be prudent for employers to be mindful of customer comments about employees on official social media sites as well as having methods in place for monitoring and addressing any comments which may be considered offensive or abusive. This may include a statement on the social media platform that the organisation does not condone, abusive, derogatory or offensive comments in relation to its employees as well as removing the offensive feedback as soon as possible. Having a social media policy that defines acceptable use and how to deal with abusive and offensive social media posts is also increasingly important.

A recent Canadian example

A Canadian labour arbitration ruling highlighted an organisations responsibility to effectively manage social media accounts to protect employees from customer abuse. The union representing employees of the Toronto Transit Commission (TTC) filed a grievance demanding the TTC’s Twitter account be permanently shut down as it created a platform for passengers to harass, demean and belittle employees.

During the case the union presented tweets that showed customers using abusive, racist and homophobic language to describe employees. Three employee’s testified with one stating a customer took his picture and posted it to Facebook and Twitter, with a message about her displeasure in relation to how he handled her complaint. His picture was deleted by the customer but was then posted by another Twitter user with the message “this douchebag needs some disciplining”. The photo and the comment remained on the Twitter site for 12 months after the incident.

The TTC defended the grievance on the basis that they had legitimate objectives for creating and operating the Twitter account, and noted increasing expectations by customers to provide such a platform. The TTC’s position was that it was impossible to regulate the dialogue on the social media site and there were no reasonable steps they could have taken to address the offensive tweets.

The arbitrator agreed there would be little to prevent customers from posting offensive message but found the evidence showed inadequate responses by TTC, including ignoring some offensive comments from customers. The arbitrator found the TTC had failed to take all reasonable and practical measures to protect its employees from customer harassment via its Twitter account. While the arbitrator did not order the shutdown of the Twitter account, he did order the TTC to create a social media policy that would effectively address inappropriate tweets made to the Twitter account.

Although this case was heard via a labour arbitration ruling, the Canadian laws are similar to Australia in that an employer has a legal obligation to take all reasonable steps to prevent harassment of employees. This decision clarifies that duty in Canada extends to comments made by the public via the employer’s social media platforms.

PEEL’s message to clients to take care of respondents during investigations has been reinforced in a recent case considering a workplace harassment investigation. At a recent client breakfast, PEEL shared learnings from the 2016 International Association on Workplace Bullying and Harassment conference. We spoke about the importance of being mindful during a workplace investigation to ensure support is also provided to the respondent.

Most of the research in relation to workplace bullying has been derived from the perspectives of the target of the bullying or witnesses; there has been very little research which has sought to examine the perspective and the consequences on the alleged bully when an allegation of bullying has been made against them.

Research from the UK and Australia presented at the conference examined bullying from the perspective of the accused and identified some common themes, which HR practitioners and leaders should consider when managing complaints of bullying and harassment.

Negative impact of the allegations on the accused’s health
Participants involved in the studies regularly reported taking time off work due to psychological disorders during workplace investigations. Notably, regardless if the allegations had been substantiated or not the research participants described similar levels of distress.

Isolation and lack of support
Most organisations have policies and procedures which offer support and assistance to those making allegations. However many respondents to claims of bullying state there is a clear lack of support afforded to them once complaints have been lodged and also during investigations, thus placing them in an isolated position.

Perceptions of organisational justice
Participants in the studies reported that although organisational policies place a focus on resolving issues at the lowest level, parties are often not given a chance to do this because there is a quick escalation. There was also a perception that complainants were shown greater empathy and treated differently to the respondent.

Importantly, the research supported the view that a person’s perception of fairness in an investigation is a key determinant on whether they decide to bring a further claim such as workers compensation or legal action. As such, aside from alignment with Values there is a key business driver to ensure the respondent is treated in a just and fair manner during the investigation is paramount.

Learning from a recent case - Hayes v State of Queensland [2016] QCA 191
A case was lodged to the District Court of Queensland by four employees who claimed their employer, the Maryborough office of Disability Services Queensland had breached their duty of care by not adequately supporting them during an investigation, whereby allegations of bullying and harassment had been made against them, leading to psychological injuries.

The Maryborough office of Disability Services Queensland’s investigation of bullying and harassment involved 26 complainants who made over 200 allegations against nine managers of bullying and harassment, the complaints were supported by the union. It was the second investigation of its type against one of the respondents over an 18 month period. Both investigations were conducted internally and resulted in the allegations being unsubstantiated. However, four of the nine respondents lodged an action in the District Court of Queensland. The employee’s complaint was not in relation to the internal investigation itself but that their employer did not fulfil its duty of care to provide them sufficient support at the time of the complaint and during the later investigation process which resulted in serious psychiatric injury.

The District Court of Queensland found that a duty of care did not arise and dismissed the employee’s claims. The four employees appealed the case, the Queensland Court of Appeal found that a claim could be made for failure to provide adequate support during an investigation.

Furthermore, it was found the duty of care was owed and was breached in relation to three of the employees, in that:

• The employer had awareness of the size and seriousness of the investigation into the allegations of bullying and harassment against the employees;
• Due to the size and maturity of the organisation they should have been able to foresee that if support was not offered the employees could suffer more than just distress; and
• Although the employees were offered counselling, no other support was offered and some of the employees were required to continue working with multiple complainants and were subject to picketing by the union and media coverage in a provincial town.

While the Queensland Court of Appeal found a breach of duty of care, the claim did not establish the psychological injuries had been caused by the breach.

The case reinforces that it would be necessary to consider the individual situation in the workplace investigation to determine whether sufficient support is provided by a global organisational support system or whether a more tailored support is necessary.

This case, and the research outlined above highlights the need to ensure support is offered to all parties during an investigation and to be mindful of how perceptions of fairness and organisational justice are managed.

The PEEL Interactive Guide for Leaders: Resolving and Promoting a Respectful and Collaborative Workplace is a support tool developed for leaders when they are managing concerns in their teams.

PEEL is passionate about the early intervention of conflict in order to avoid its escalation to destructive stages that could involve bullying.  The key to early intervention is our leaders and ensuring they are skilled to identify and work to assist in the resolution of conflict.  Many times in our mediations, investigations and training we have heard from leaders that they have not assisted the resolution of conflict early because they haven’t known what to do or say.

Our Interactive Leaders Guide on resolving conflict and promoting a respectful and collaborative workplace is a tool that leaders can refer to on the job.  It contains very practical information and 5 short videos that leaders can watch to hear the words and be aware of the potential curve balls they might be thrown. 

Why not check out a snapshot of the Guide?

• Click here to watch a sample video
• Click here to access a sample of the Interactive Guide for Leaders Booklet

If you would like to find more out about the guide simply get in contact with one of our consultants by phoning 1300 665 1441300 665 144.

Today is a day of reflection. A day where we can all take a moment to pause and consider the actions we can take to reduce the risk of injury and illness in our workplace. It is also a day of reflection, to remember those who may have lost their lives from a work-related injury or illness.

Investigating and dealing with individual instances of workplace bullying is of limited value if the underlying causes are not also identified and dealt with. PEEL HR advocates a holistic approach to investigations that considers the context in which bullying occurs so that preventative changes can be made.

A practical tip from the opening discussions of the Special Interest Group at the 9^th International Conference on Workplace Bullying and Harassment is to classify and consider the context of bullying in terms of the organisation, the team and the individual. Are there broad systemic issues such as culture that need to be addressed? Is there dysfunction within the team that is causing problems? Is there a lack of skill or understanding at the individual level?

Investigating and reporting on workplace bullying at each of these levels ensures a more comprehensive assessment of risk and a more complete response to the situation. 

Employees may be hesitant to raise concerns or complaints in the workplace if they lack confidence in the organisational dispute resolution system. This can lead to issues such as bullying going unreported or under-reported, making identification and resolution more difficult.

A practical tip from the opening discussions of the Special Interest Group at the 9^th International Conference on Workplace Bullying and Harassment is to develop a simple annual report card which provides aggregated, de-identified feedback to all employees about how the dispute resolution system has been utilised. It may include information such as:

• Number of workplace concerns reported in the past year;
• Percentage of matters resolved through informal means;
• Percentage of matters formally investigated;
• Key actions taken in response to matters reported (e.g. training offered, amendment of policy).

Rather than reserving this information for HR or organisational leaders, share it with all employees so they can see that workplace concerns are being dealt with appropriately and have the confidence to come forward when they need to.  

Workplace bullying has become an increasingly topical issue. High profile cases and changes to legislation such as Brodie’s Law in Victoria and Anti-Bullying provisions within the Fair Work Act have stimulated debate about bullying amongst business leaders, HR practitioners and the community at large. This interest and discussion is not limited to Australia and next week the 9^th International Conference on Workplace Bullying and Harassment will be held in Milan, Italy. The conference will feature experts from across the world and cover topics such as:

Principal Consultant for PEEL HR, Danielle Carney, will be participating in the conference and sharing regular updates and insights from this cutting edge research. You can stay up to date in the following ways:

The Fair Work Commission recently released its first quarterly report on its anti-bullying powers. The report reveals that there were 151 applications to stop alleged bullying at work between January and March this year. All matters were dealt with in the mandatory 14-day period, and the vast majority were resolved without proceeding to a formal decision. Only one application was granted, and you can read the details of that decision in a previous PEEL News.

What is of most interest in the report is the demographic information. It revealed that most applicants were employees (133), most complaints came from those working in large organisations (67), and the greatest number of allegations (109) were against managers.

While 151 seems like a lot of applications, it is heartening to see that very few have progressed to a hearing.  It is also evident from the statistics that where the FWC have become more involved, it has been by way of mediation.

The Report is a good reminder to ensure you:

Here is a link to the FWC Quarterly Report.

The Anti-Bullying clause (s. 789FC) of the Fair Work Act covers employees, contractors, outworkers, apprentices, work experience students and volunteers. The expansive definition of “worker” means that organisations need to consider their responsibility for the broader network of those who carry out work on their behalf. However, there are limits to the definition and the FWC has recently clarified these.

In Arnold Balthazaar v Department of Human Services (Commonwealth) (AB2014/1061), Mr Balthazaar sought an anti-bullying order against CentreLink following a dispute relating to his carers payment (a social security payment). In response to jurisdictional objections, Mr Balthazaar argued that he was a worker on the basis he was being remunerated for work (caring for his daughter) that would otherwise be provided by the State. While the FWC agreed that he did conduct work, it rejected the notion that such work was done for the Department. In summarising, Vice President Watson stated that ‘while obviously intended to cover a broad range of work arrangements, the provisions are not unlimited. In my view they are clearly not intended to cover relationships such as students performing work for teachers, domestic work by family members or relationships outside the context of paid or unpaid work in the commonly understood sense.’

This case provides clarity and confidence for organisations by rejecting artificial notions of what it means to be a worker. However, it is also an important reminder that the anti-bullying provisions do apply to anyone doing work for an organisation including unpaid activities through work experience and volunteering. Organisations should ensure that all workers, in the broad sense of the meaning, are appropriately inducted, trained and monitored to ensure that they do not become the perpetrators or victims of workplace bullying.

Since the introduction of anti-bullying amendments to the Fair Work Act (2009) in January 2014, many have wondered what these changes will mean in practice. What will anti-bullying orders involve? How detailed with they be? We now have our first glimpse of these amendments at work.

Last Friday, the Fair Work Commission handed down its first order to stop bullying in response to an application from an employee (Matter AB2014/1052). While the order does not provide specifics about the situation, it does go into great detail about required behaviours. For example, the respondent is directed to ‘have no contact with the applicant alone’, ‘make no comment about the applicant’s clothes or appearance’, and ‘not send any emails or texts to the applicant except in emergency circumstances’, ‘complete any exercise at the employers premises before 8:00am’, and the applicant is directed to ‘not arrive at work prior to 8.15am’. Such a response indicates that anti-bullying orders are likely to get into the detail and impose operational requirements.  Breaching any such order may lead to penalties of up to $10,200 for individuals and $51,000 for corporations.

Further orders will provide more insight into how the FWC intends to use the anti-bullying amendments, but there are already some important lessons here for organisations, including:

Recent research conducted by the National Australia Bank in conjunction with the Alannah and Madeline Foundation revealed that Australians who witnessed instances of bullying were more likely to stay quiet than to speak up. In fact, 65.1% of Australians surveyed admitted they had been in a situation where they could have intervened but chose not to.

This confirms how critical it is for businesses to create an environment where people feel safe and confident to speak up. As the CEO of the Alannah and Madeline Foundation pointed out it is vital that witnesses stand and assist.  Not only will that help the person being bullied to feel supported but it has great potential in stopping the behaviour from continuing. The challenge is that people often don’t intervene because they are concerned that they will then be victim to bullying.  Sadly, the results indicate that 79.8% of individuals surveyed had regretted their decision not to speak up after witnessing an account of bullying, and, 64.7% of those surveyed said they would feel confident to if they were in a safe environment or had support from others.

So as an employer what do we need to do to promote a culture free from bullying?

Employers need to ensure they have robust safety systems in place that clearly identify, assess and control the risk of workplace bullying. It is equally important that employers have a clearly defined and communicated bullying policy and complaints procedure which is readily available and understood by employees.

Workplace training on Bullying and Harassment should be provided to employees and managers and refresher training should also be provided. Those staff who have a designated role in handling bullying complaints should be provided with more specific training on the management of complaints.

In recent months we have brought you updates on the legislative changes that are coming into effect from the 1st January 2014 with respect to Fair Work Commissions anti-bullying powers, see: Workplace Bullying be prepared, you only have 6 months to go  and The Countdown is on....will your investigations stand up? 

Some recent surveys we have reviewed have shown some alarming figures in this area. The responses to the People Matter Employee Survey 2012 show that bullying is a significant issue in the NSW public sector with almost one-third (29%) of respondents saying they had personally experienced bullying in the workplace in the last 12 months and almost half (48%) had witnessed bullying at work. The 2012 RU OK survey noted that 46% of the respondents would rather resign than address workplace relationship issues. More recently, research conducted by the National Australia Bank in conjunction with the Alannah and Madeline Foundation revealed 65.1% of Australians surveyed admitted they had been in a situation where they could have intervened by chose not to. As employers, this is concerning but what can we do about it? What can we do to avoid similar statistics in our own organisations?

Under the Model Work Safety legislation, the Draft Preventing and Responding to Workplace Bullying Code of Practice promotes a risk management approach should be adopted by employers in the management of workplace bullying. Workplace bullying is a psychological hazard, the risks of which need to be managed like any other hazard at the workplace. To assist you with assessing the risks of workplace bullying in your organisation PEEL HR have developed an on-line assessment tool. This tool will help you to determine if you have a low, low-moderate, moderate-high or very high risk assessment rating for workplace bullying.

Click here to access and complete the tool.

On completing the tool PEEL HR will provide you with your rating and some recommendations so you can get to action NOW are ensure you are ready for the year ahead.

Respectful Workplace Training…

Q: In the last 2 years have you delivered compliance training for your staff in the areas of EEO, bullying, discrimination and harassment?

Do you have new staff who have not been trained in these areas?

PEEL HR offers an informative and interactive 2 hour Respectful Workplace program that ensures not only will your employees understand their obligations in this area but they will recognize the value and importance of respectful communication. We have been running many of these sessions in-house for our clients who are taking action to get ready now!  The programs are time efficient and tailored to your policies. Don’t wait until January, call us now and book your sessions in.

For more information contact us at PEEL HR: 49637373 or at email@peelhr.com.au or Check out our website at www.peelhr.com.au for all course details.

The countdown is on to the Fair Work Commissions anti-bullying powers which come into effect from 1 January 2014. In our last PEEL News:  Workplace Bullying be prepared, you only have 6 months to go, we provided you with an action plan, click here,  to assist you with your preparations.

It is important to note that one of the first steps that will be undertaken by the Fair Work Commission (FWC) before making any orders will be to determine whether a worker has been bullied. In doing this the FWC will assess the outcomes of any prior investigations into the matter. As an employer we must therefore ensure not only are we taking steps to investigate such matters but that our investigations will stand up to such review.

In the recent case of Swan v Monash Law Book Co-operative (June 2013), an employee who was repeatedly bullied by her manager was awarded $592,554.38 in damages as a result of her employer failing to take reasonable care to protect her from the workplace bullying. The employee initially advised her employer she did not want disciplinary action taken against the manager. As such the employer took no action. When further complaints were raised the employer failed to intervene and failed to properly investigate the matter. In addition to being highly critical of the lack of intervention, the Court was also critical of the organisation for relying on the request made by the employee for no action to be taken against the manager, failing to monitor the situation following the initial complaint, not having a complaint handling process in place and not articulating its expectations in relation to workplace conduct in job descriptions, employment contracts and workplace policies.

It is paramount that you have staff in place who are equipped to deal with bullying complaints and that such matters are dealt with in a timely and thorough manner. Having said this, it is also important to remember that workplace investigations are not required to be conducted to the standard of a police investigation.

It is necessary to observer the principles of procedural fairness when conducting a workplace investigation, however, there are occasions when deviations from the procedural norms have been overlooked. Take for example the case of Austin v NF Importers P/L, the court held that the dismissal of the employee in this case was fair despite investigative defects.  In this case it was deemed that the grounds for dismissal were so serious they outweighed the procedural defects. The critical importance here is that the defects were procedural and not substantive in nature.

Additionally, the case of Rogers V Millennium Inorganic Chemicals Limited involved and employee who brought an unlawful termination claim against the employer. The employee claimed the employer had breached implied terms of mutual trust and confidence by:

The court determined the investigation conducted was sufficient. They highlighted that as the employee had denied the allegations outright, it was immaterial whether he knew the names of the witnesses. The magistrate hearing the case commented, “There is no obligation upon an employer in an investigation of this kind to conduct a perfect investigation or an investigation the equivalent of a police investigation…” It is prudent to remember that this kind of deviation may only be relevant to the extent of such cases where a respondent completely denies all allegations.

Whilst not every minor procedural oversight will result in challenges to your investigations, the importance of procedural fairness should not be paid lip-service.  The evolving legal landscape will require your investigators to ensure that not only are the outcomes of their investigations substantively fair but that they are following due and proper process.

PEEL will be running the last of our Workplace Investigations training for 2013 on 16 & 14th October, to register go to: http://www.peelhr.com.au/workshops

On the 27^th June 2013, the Fair Work Act 2009 was amended to give the Fair Work Commission anti-bullying powers.  They will come into effect on the 1^st January 2014.

What does this mean?

The amendments to the Fair Work Act:

1. Allow workers to apply directly to the Fair Work Commission for an order to stop the bullying. The worker must reasonably believe they are being bullied. There is no income cap restricting those who can apply.
2. Define “bullying at work” to be “repeated unreasonable behaviour by an individual or group of individuals towards a worker (or group of workers of which the worker is a member), where the behaviour creates a risk to health and safety whilst at work”.
3. Require the Fair Work Commission to deal with an application for an order to stop bullying within 14 days of an application being made. In the process, employers and co-workers may be summonsed to attend a hearing or conference, or to produce documents.
4. Give the Fair Work Commission the power to make any order it considers appropriate, other than financial penalties, reinstatement or compensation.

There is no time limit for an employee to make of an application to the Fair Work Commission. The worker needs only to remain in the workplace and still be exposed to circumstances that pose a risk.  Additionally, the worker will not be precluded from commencing other actions under the Fair Work Act such as unfair dismissal or general protection applications.

The first step for the Fair Work Commission before making an order will be to satisfy itself the worker was bullied and there is an obvious risk the bullying will continue. They will consider:

1. The outcome of any prior investigations into the matter.
2. Whether there are any other procedures available to the individual to resolve the grievance and/or dispute.

What could this mean for Employers?

1. There is no requirement for a worker to first raise a bullying concern internally.
2. There will be greater scrutiny and expectation around performance management processes.
3. It will be an imperative to thoroughly document all workplace investigations and ensure they are procedurally fair.
4. The lack of clarity around what constitutes “bullied at work will possibly expose employers to claims arising from social media interactions or as a result of flexible work arrangements that are not clearly defined.
5. This amounts to a new workplace right triggering general protection provisions and increasing exposure to adverse action claims.
6. A order from the Commission may increase the success of workers compensation claims for psychological injury.

What do you have to do to be ready for 1 Jan 2014?

Peel has developed an Action Plan to assist with your preparation for 1st January 2014. Check it out here.

The bottom line is to ensure that all complaints made are responded to quickly and in sufficient detail.

To assist you in the implementation of your action plan you will find a copy of the following document on our website www.peelhr.com.au

·  Draft Code of Practice Preventing and Responding to Workplace Bullying

·  Safe Work Australia Workplace Bullying – Draft -  A Workers Guide

·  A sample investigation file note template

Keep ahead of the change and start implementing steps now. If you require any assistance in relation to workplace investigations or training in Respectful Workplaces feel free to contact us at email@peelhr.com.au or call (02) 4963 7373.

An intervention to resolve a workplace conflict can only be truly effective if it is done for a long term result. Workplace mediation that fixes the immediate conflict and doesn’t consider preventative measures is a job half done. It’s like listening to the hit, not the LP. Rather than take a traditional approach of addressing the immediate relationship conflict, take a more contemporary holistic risk management approach of understanding what is underlying the conflict and address it.

What are the contributory factors to the immediate conflict as they could be impacting other relationships in conflict or simmering below the surface. Sustainable outcomes can not be achieved if we are sending the people, post mediation, back into a climate or environment fertile for further conflict. Find the root causes and change the environment away from one that cultivates conflict.

What could be the underlying risk factors ? Click Risk Factors - Unhealthy Workplace Conflict for a table setting out some practical examples.

When the risk factors are identified they should be caught and referred to the appropriate person to further consider and action them. The risk factors might be identified by regular systemic reviews or analytics. They might be identified by the mediation parties during the mediation, the HR Leader conducting the mediation may identify them in the mediation or in the proceedings leading to the mediation. To be further on the front foot, your Leaders should be identifying the risk factors in their day to day operations. That way, they are identified as early as possible and eliminated or controlled.

Providing your Leaders with the core competencies in managing workplace conflict is an organisational necessity. Building the competency within your leadership means that early resolution or better still prevention of unhealthy workplace conflict can occur.

Conflict left unattended can escalate to bullying. Not only lost production and decreased engagement but the business will suffer costs in managing a complaint and potential workers compensation claim. Taking a more moderate perspective, international research shows that workplace conflict costs leaders 20 – 30% of their time each year in responding. Even if the time spent in your business is less – say 15%, this still is a significant cost to the business. With an average TRP of $80 000, that is a cost of $12 000 per leader. If you have 50 leaders across the business, this is an annual cost of $600 000. These are conservative figures.

Peel HR offers training in holistic workplace mediation. We deliver both 1 ½ day programs for HR Professionals and 1 day programs for Leaders. Ask us about them

The draft ‘Preventing and Responding to Workplace Bullying’, Code of Practice (COP) was released on 26 September. It remains open for public comment until 16 December. It is part of the model Work Health and Safety (WHS) Regulations attached to the WHS Act.  The WHS Act is due to commence on 1 January 2012 with possible delayed commencement of the Regulations for up to 1 year.

While it is the first time we have received clarity on the definition of workplace bullying in one document, what we see in the draft COP is not unexpected. The draft COP:

• Defines Workplace Bullying as, “repeated, unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety.’
• Establishes that bullying can be both direct and indirect.
• Establishes that bullying can be intentional or unintentional.
• Acknowledges that the behaviour can occur face-to-face, over the phone, via email, instant messaging or using mobile phone technologies including text messaging.
• Bullying complaints can be addressed informally or through formal investigations.
• All matters should be treated seriously and confidentially.
• Complaints should be addressed promptly and impartially.
• Parties should be supported and not victimised.
• The process and outcomes should be communicated to the parties.
• Adequate records should be maintained.

The draft COP does attempt to increase the onus on workplace participants taking action against bullying.  It places a legal responsibility on employers, i.e. persons conducting a business or undertaking – (PCBU), officers and workers to prevent bullying in the workplace. It also requires that businesses:

1. Have robust safety systems that clearly identify, assess and control the risk of workplace bullying.
2. Have a clearly defined and communicated bullying policy. The policy may be developed as a specific bullying policy or incorporated into an existing health and safety or HR policy.
3. Develop effective complaints procedures.
4. Ensure information and training is provided to employees and managers. Those who have a designated role in handling bullying complaints should be provided with specific training on grievance processes.
5. Encourage reporting with appropriate support mechanisms such as contact officers.

Further, the WHS Act attempts to embed a safety culture by requiring “Officers” of the PCBU (such as company directors, senior managers, operational or commercial managers) to take reasonable steps to acquire, and keep up to date with, knowledge of work health and safety concerns in the business.

It would be smart practice to progress filing any gaps in the above lists now so your business is ready for 1 January 2012. PEEL HR can provide organisations with assistance in the development of resources that support these initiatives such as policies, manager’s implementation guides, designing complaint processes as well as our Respectful Workplace Training series for Managers and Employees and Workplace Investigations Training program for HR and Managers.

Please feel free to contact us or in the office on: 4963 7373